.. SuPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY ' / PRESENT: ~Jc&u~v"\ .,j ~~~(.L\_ez~Q_~'--" PART { q Index Number : 11784 7/2009 MAHINDA, JOSEPHINE NDEX NO. vs lo10TION DATE NYC LAW DEPT. V10TION SEQ. NO. Sequence Number: 001 ARTICLE 78 V10TION CAL. NO. The following papers, numbered 1 to __ were reaa on tniS motion to/for ------PAPERS NUMBERED Notice of Motion/ Order to Show Cause Affidavits Exhibits ... Answering Affidavits Exhibits ---------------en Replying Affidavits-----------------z 0 en <( Cross-Motion: 0 Yes D No w a: Upon the foregoing papers, it is ordered that this motion o w -" z i=~ U)...J :::)...J .,0 ou.. 1-w cJ: wt-a:a: a:o ~u.. w a: >-...J ...J :::) u.. 1-() w Q. en w a: en w en <( z -() 0 1-Dated: -----'-\- -...01, --'--tj ~ll0 _ _ 0 ~ Check one: (j FINAL DISPOSITION NON-FINAL DISPOSITION Check if appropriate: DO NOT POST REFERENCE
SLPREf\.IE COUR r OF TIlE STA f'E OF NEW YORK L'( HJNTY OF NEW YORK: C[VIL f'ERM: P,\R r l9 -------------------------------------------------------------------:< JOSEPHINE MAHINDA, t>t:titioner, [ndex No.: l t 7847/09 -against-Submission Date: 7/28/20 I 0 CITY OF NEW YORK, BOARD OF COLLECTIVE BARGAINING, ORGANIZATION OF STAFF DECISION AND ORDER ANALYSTS, Respondents. --------------------------------------------------------------------)( For Petitioner, prose: For Respondent Organization of Staff Analysts: Josephine Mahinda law Offices of Leonard A. Shrier 87-08 Pitkin Ave., Apt. 2B 217 Broadway, Suite 409 Ozone Park, NY 11417 New York, NY 10007 For Respondent Board of Collective Bargaining: For Respondent City ofNew York: Steven C. Decosta Michael A. Cardozo ·W Rector Street, 7'h Floor I 00 Church Street, Room 2-183 New York, NY 10006 New York, NY 10007 lION. SALIANN SCARPULLA, J.: In this Article 78 proceeding, petitioner Josephine Mahinda ("Mahinda") seeks ( l) to annul the determination of respondent Board of Collective Bargaining ("Board") Jenying her improper practice petition; (2) to compel respondent Organization of Staff Analysts ("OSA") to schedule an arbitration on her behalf; and (3) to review the respondent City of New York's (''City") underlying Jecision to terminate her and to reinstate her position with back pay, costs and damages. 1 1 Mahinda had originally commenced an Article 78 proceeding by notice of petition and petition dated December 21, 2009 against NYC Law Department, OSA General Counsel, and Board of Collective Bargaining. Respondents moved to dismiss that petition. fn addition, Mahinda moved tor leave to amend her petition to remove certain respondents and add certain respondents. She also moved to add certain new allegations. rhis Court granted her leave to amend and therefore, it is only the amended . . ,_1-,·\(} \ \ \; 'C\ uo \\ I , ) ~ \ ' '"'
'• Mahinda was hired as a provisional Principal Administrative Associate by the New York City Department ofTransportation ("DOT") on November 25, 2002. On August 23, 2004, she received a provisional appointment to the position of Associate Staff Analyst at the DOT. She was represented by the Organization of Staff Analysts union ("OSA"). In or about August 2008, she was served with charges alleging, inter alia, that she neglected or refused to perfonn her assigned duties and engaged in acts prejudicial to the good order and discipline of the DOT. On September 25, 2008, an informal conference was held at the Office of the Department Advocate, at which charges against her were found to be substantiated and tennination was recommended. Mahinda filed a Refusal of Recommended Penalty and appealed the decision. On October 16, 2008, Mahinda and an OSA union representative attended a disciplinary hearing, at which time the DOT's Director of Labor Relations upheld the recommended penalty of termination. DOT terntinated Mahinda 's position on October 17, 2008. On October 21, 2008, OSA filed a Request for Arbitration with the Office of Collective Bargaining ("OCB") on Mahinda' s behalf alleging that the DOT violated the Collective Bargaining Agreement by tenninating her position. Prior to that time, in August 2008, Mahinda had been informed that she would not be able to arbitrate her case because of the Court of Appeals decision in the Matter oft he City Long Beach v. Civil petition and motions IUld cross motions relating thereto that are tho subject of this decision/order. 2
Service Employees Association, Inc., 8 N. YJd 465 (2007) ("Court of Appeals decision") in which the court held that provisional employees did not have disciplinary grievance rights. In response to that decision, the New York State Legislature amended Civil Service Law §65 to permit public employers such as the City to negotiate grievance rights for provisional employees. Those negotiations were ongoing between DC37, the Citywide bargaining representative, and the City. Until the completion of those negotiations, no provisional disciplinary arbitrations were being heard at the OCB. On February 9, 2009, Mahinda wrote a letter to OCB admitting that she was aware that due to the Court of Appeals ruling, all requests for arbitration were on hold with OCB. She inquired as to whether OSA had tiled a request for arbitration in her case and whether OSA had been arbitrating matters pertaining to provisional employees yet. On February 12, 2009, she received a response from OCB, indicating that OSA had filed her request for arbitration on October 23, 2008 and that an arbitrator had been designated on December 5, 2008. She was informed that the City and certain unions agreed that aJI pending and future grievances concerning disciplinary actions involving provisional employees were to be held in abeyance but that it did not know if her case specifically was being held in abeyl:lllce. She received a letter from her lawyer at the time, Arthur H. Fonna.n, dated April 7, 2009 infonning her that OSA would want to proceed to arbitration on her behalf but because of the Court of Appeals decision, the City would not arbitrate. 3
On April J7 , 2009, Mahinda tiled an improper practice petition with the OCB, alleging that OSA breached its duty of fair representiltion in violation of NYCCBL §1 2-J06(b)(3) and that the City wrongfully tenninated her employment. On November 23, 2009, OCB denied Mahinda's improper practice petition, finding that it was time barred and, in wty event, failed to establish that any agreement for provisional employee disciplinary procedures had bet';ll reached, 1111d thus was unable to assert any change of facts or subsequent development to prove any breach of duty of fair representation on the part of the Union. The OCB ftuther found that Mabinda did not sufficiently plead sufficient facts to establish any potentials claims against the City for violations of 12-306(a )( I) and (3 ). Mahinda now conunences this Article 78 proceeding seeking ( 1) to annul the Board's decision to deny her improper practice petition; (2) to compel OSA to schedule an arbitration on her behalf; and (3) to review the City's underlying decision to terminate h.er and to reinstate her position with back pay, costs and damages. The Board moves to dismiss the amended petition and OSA and the City cross move to dismiss the amended petition. They argue that (1) Mahinda's challenge to the tennination of her employment is time barred by the applicable four month statute of limitations and, in any event, as a provisional employee, Mahinda could have been terminated for any reason without a notice or hearing, and she failed to demonstrate that her tennination was made in bad faith; (2) her Article 78 proceeding is time barred; and 4
·. (J) the Board's detennination that her improper practice petition was untimely and also without merit was not arbitrary and capricious. In opposition to the motion and cross motions, Mahinda flrst argues that her Article 78 proceeding was not untimely commenced. She maintains that even though the necessruy parties were not properly named in her originaJ petition, aU necessary parties were made aware of her Article 78 proceeding in a timely manner through tbat original petition. She further argues that, in any event, the court can and should toll the statute of limitations because she attempted to properly and timely commence her Article 78 proceeding in good faith lllld there is no prejudice to the respondents. She also claims that the statute of limitations should be tolled as a result of her former attorney's malicious acts of withholding information from her. She next argues that the negotiations between DC37 and the City have been completed and the 2008-2010 Union contract adopted grievance rights for provisional employees, fucluding arbitration. She maintains that the Board, the City and OSA were aware of this development and as such, OSA breached its duty of fair representation and acted in bad faith by failing to move her case to arbitration. The Board, OSA and the City flrst argue that the amended petition must be dismissed because it was faciaJJy iruufficient and/or untimely flled. 2 While they do not 1 Mabinda offers no legaJ authority to support her argument that the statute of limitations .,hould be tolled. 5
dispute that the original petition was timely filed as against the Board individually, in that the Board issued and served its decision in November 2009 and the original petition was filed within the 30 day statute of limitations in December 2009, they explain that the originaJ petition was faciaJly insufficient as that petition failed to include all necessary parties. They further maintain that the amended petition, while naming all necessary parties, was tiled in May 2010, clearly outside of the 30 day statute oflimitations for this Article 78 proceeding. See NYC Administrative Code §12-308. fn granting Mahinda leave to amend the pleadings to substitute in the necessary parties, the Court noted that as a pro se petitioner, Mahinda perhaps was not aware of the correct parties to name. However, the Court also noted that respondents' rights to bring up any statute of limitations arguments were not waived by tpe grant ofMahinda's request for leave to amend her petition. Even ifMahinda's proceeding was to be considered timely commenced and facially sufficient, the Court nevertheless finds that the petition must be denied and the proceeding dismissed. First, there is no basis to grant Mahinda's request to IUlllUJ the Board's decision to deny her improper practice petition. Under Article 78, judicial review of an administrative determination is limited to the evaluation of whether the determination is consistent with lawful procedures, whether it is arbitrary or capriciow, and whether it is a reasonable exercise of the agency's discretion. A court cannot simply substitute its judgment for that of an administrative agency when the agency's 6
detennination is reasonable. Dfstrict Council 3 7, American Federation ofS tate, County and J1unicipa/ Employees, AFL-CIO, eta/., Appel/anf3, v City ofN ew York, eta/., 22 A.D.Jd 279, 283-284 (In Dept. 2005). Here, Mahinda fails to submit evidence establishing that the Board's decision was arbitrary and capricious, contrary to the law, without sound basis in reason or in disregard of the facts. Evidence presented establishes that in reaching its determination that Mabinda's improper practice proceeding was WltimeJy and, in any event, without merit, the Board carefully considered the facts and made its detennination upon a thorough review of the entire record and upon a proper application of the relevant law. Mahinda's arguments to the contrary are without merit Further, there is no basis to grant Mahinda's request to compel OSA to schedule an arbitration on her behalf. She has failed to submit evidence sufficient to prove that OSA breached its duty of fair representation, in violation of NYC Administrative Code § l2-306(bX3), and has failed to submit any other evidence evincing a reason for the court to compel OSA to schedule an arbitration at this time. Mahinda admits that she was made aware of the Court of Appeals decision in August 2008, wben she was told that OSA and the City could not proceed with her arbitration of the grievance until after negotiations by DC3 7 and the City were completed and an agreement was reached. While Mahinda asserts that an agreement has been reached, that arbitration rights for provisional employees have been reinstated, and that her case should now proceed to arbitration, she otTers no probative evidence substantiating this assertion. 7
'. Finally, there is no basis to grant Mahinda's request tbr the court to review the City's underlying decision to terminate her and to reinstate her position with back pay, costs and damages. Mahinda argues that her termination was improper because she was investigated prior to being served with charges and because the evidence offered to support her termination was inadequate. It is .well settled that as a provisional employee, Mahinda could be tenninated at any time, wif4out a hearing, for almost any reoson, or for no reason at aU. See Matter of Preddice v. Callanan, 69 N. Y.2d 812 (1987); Matter ofL ee v. Albany-Schoharie-Schenectady~ Saratoga Bd ofC ooperative Educational Services, 69 A.D.3d 1289 (3nt Dept. 201 0). WhiJe courts have noted that "other remedies may be available to provisional employees in the event of statutory or constitutional violations~" h~re, Mahinda fails to demonstrate that, in tenninating her employment, the City violated Civil Service Law §65, which governs provisional appointments, or WJY other constitutional or statutory provision. Matter ofL ee v. Albany-Schoharie-Schenectady-Saratoga Bd. of Cooperative Educational Services, 69 A.D.Jd 1289, 1290 (Jtd Dept 2010) Further, in the absence of any demonstration that the termination was done in bad faith, the Court wiU not interfere with the discretjon of the agency unless the action complained of was arbitrary and capricious. Petitioner bears the burden of raising and proving such bad faith, and the mere assertion of bad faith without the presentation of evidence demonstrating it does not satisfY the employee's burden. See Matter ofO jfong v. 8
New York City Department ofE ducation, 2010 NY Slip Op 31529U (Sup. Ct. N.Y. Co., June 7, 2010); }.latter ofJfcDonneil v. Lancaster, 11 Misc.3d llOIA (Sup. Ct. N.Y. Co., 2007). Here, evidence was presented that DOT served Mahinda with charges alleging, inter alia, that she neglected or refused to perfonn her assigned du6es and engaged in acts prejudicial to the good order and discipline of the DOT. An infonnal conference was held, at which charges against her were fotmd to be substantiated and termination was recommended. Mahinda filed a Refusal of Recommended Penalty and appealed the decision. Mahinda and an OSA union representative attended a disciplinary bearing, at which time the hearing officer found that the testimony and evidence presented supported the fmdings of misconduct, and upheld the recommended penalty of tennination. No evidence has been presented that Mahinda's employment was terminated in bad faith or that the termination was arbitrary and capricious. In accordance with the foregoing, it is hereby ORDERED and ADJUDGED that petitioner Josephine Mahinda's amended petition is denied and the proceeding is dismissed; and it is further ORDERED that respondent Board of Collective Bargaining's motion to dismiss the amended petition is granted; and it is further ORDERED that respondent the City of New York's cross motion to dismiss the llDlended petition is granted; and it is further 9
( >RDERED that respondent Organization uf Staff ,\nalysts' cross mution to dismiss the amended petition is granted; and it is further ORDERED that the Clt:rk of the Court is directed to enter judgment accordingly. This constitutes the decision and order of the court. Dated: New York, New York October S , 20 l 0 ENTER: F\t.E.O ocT 1 4 201ll ER~SOff\CS couN~~t yoRK 10
Index No. 117847/2009 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PLEASE TAKE NOTICE that a Decision JOSEPHINE MAHINDA. Order and J udg.ment of which the with in is a copy. was dul::entered in the office of the Clerk of the Supreme Cour1. Ne\\ York County on the 14th day of October Petitioner 2010 -against-Michael A. Cardozo CITY OF NEW YORK. BOARD OF COLLECTIVE Corporation Counsel BARGAINING. ORGANIZATION OF STAFF Attornevjor Respondents ANALYSTS. Dated New York, New rork October !5, 20 I 0 Respondents. By: /(].~ Shakera Khandakar Assistant Corporation Counsel NOTICE OF ENTRY DECISION, ORDER & JUDGMENT To: John Wireniuns Deputy General Counsel MICHAEL A. CARDOZO Office of Collective Bargaining Corporation Counsel Shakera Khandakar, ACC 40 Rector Street ih Floor Attorney for Respondents New York, NY 10 006 I 00 Church Street, 2-I 83 New York. N.Y. I0007 (212) 442-0144 Matter No. 2009-045808 C) t :[' n 1 J 1 ., · . ·1 ;v n Dl t u n.z Due and timely service of a copy of the within Notice o{ vI L\ Entry is hereby admitted ~~<Q .. '<J \ New York NY ............................................ 2010 ? ~ ........................................................................ Esq. "' Attorneyfor ........................................................... .
:
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.